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HQ 955976




May 19, 1994

CLA-2 CO:R:C:T 955976 BC

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9986

Thomas Hardy
District Director of Customs
U.S. Customs Service
1000 Second Avenue, Suite 2200
Seattle, WA 98104

RE: Application for further review of protest no. 3001-93- 100008; classification of textile covered paperboard picture frames

Dear Mr. Hardy:

This is a decision on an application for further review of a protest timely filed by Fritz Companies, Inc. on behalf of Wholesale Supply Company of Nashville, Tennessee. The protest objects to your decision concerning the classification of picture frames.

FACTS:

This protest covers five entries dated December 11, 1992. The entries were liquidated on October 15, 1993, and this protest was timely filed, under 19 U.S.C. 1514, on January 4, 1994. The PROTESTANT is the importer of the merchandise at issue.

The merchandise at issue is identified as style #623R. They are picture frames constructed of paperboard and covered with textile fabric. The oval, heart, and round shaped picture frames are for hanging on a wall. The picture frames were entered under subheading 4823.90.8500, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other articles of paperboard. After entry, Customs issued a Notice of Action (CF 29), dated September 14, 1993, informing the importer that the frames were being classified under subheading 6307.90.9986, HTSUSA, which provides for other articles of textile materials. The entries were so liquidated, and the importer filed this protest.

Cited in the protest is New York Ruling Letter (NYRL) 841199, which was issued to the importer on May 19, 1989. This ruling classified similar articles under heading 4823, HTSUSA. The protest asserts that the articles at issue here should be classified in accordance therewith. Customs bases its classification decision on recent rulings classifying textile covered picture frames under heading 6307, HTSUSA.

ISSUE:

What is the proper classification for the textile covered paperboard picture frames?

LAW AND ANALYSIS:

The protest asserts that Customs classification of the picture frames at issue in subheading 6307.90.9986, HTSUSA, is incorrect. The sole argument put forward in the protest is that Customs classification of these articles is not consistent with Customs classification of a similar article under heading 4823, HTSUSA, in NYRL 841199.

The article classified in NYRL 841199 is identified therein as "Item 241R." It is described, based on a sample submitted for examination, as a 5 inch x 7 inch tapestry picture frame, consisting of a 7 inch x 9 inch sheet of stiff, heavy-gauge coated paperboard. Into the back side of this sheet of paperboard, a 5 inch x 7 inch hinged door is cut. A separate piece of paperboard is attached to the back for use as a stand. The front of the frame incorporates a sheet of glass surrounded by a 1 and 1/4 inch wide border. The border is made of a strip of paperboard covered with a rayon and polyester fabric, with a sponge padding in between. A picture/photograph is inserted through the hinged door in the back of the frame.

As stated, the ruling classified this #241R picture frame in heading 4823, HTSUSA. The decision was based on GRI 3(b), since the frame consists of more than one material: paperboard, glass, and textile fabric. (Because classification was not in chapter 63, HTSUSA, pertaining to articles of textile materials, or chapter 70, HTSUSA, pertaining to articles of glass, the only other chapters that could be considered, it is clear that GRI 3(c) was not applied.) General Rule of Interpretation 3(b) and GRI 3(c) provide the following:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

It is thus clear that in NYRL 841199, the paperboard material was considered by the classifier, under GRI 3(b), to impart essential character to the picture frame.

The PROTESTANT asserts that the articles at issue should be classified as were the articles in NYRL 841199: on the basis of a finding that the paperboard component of the frames imparts essential character under GRI 3(b). In contrast, the frames at issue here were classified according to GRI 3(c). Initially, we note that a ruling letter is binding only where the article to be classified is identical to the article classified in the ruling. (See section 177.9(b)(2) of the Customs Regulations (19 CFR 177.9(b)(2)).) The articles at issue in this protest are similar but not identical to the articles classified in the New York ruling. Therefore, the New York ruling does not have binding effect on the articles at issue here.

Moreover, classification under GRI 3(b) is a subjective exercise. It requires a close examination of the article and a careful weighing of the relative importance or predominance of its component materials. The EN's for GRI 3(b) provide the following:

(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

In applying GRI 3(b), the classifier must make a determination based on observed facts and a subjective judgment based on those facts. Classification under this rule is necessarily applied on a case by case basis, regardless of the kind of article being classified. Thus, while recent cases have shown that similar articles have been classified under GRI 3(c), we cannot summarily conclude, in the context of this protest and on the basis of this precedent, that NYRL 841199 was wrongly decided under GRI 3(b). Likewise, we cannot conclude that the classification decision at issue, made under GRI 3(c), was incorrect on the basis of the decision in NYRL 841199. In other words, a ruling classifying a picture frame under GRI 3(b) does not stand for the proposition that all picture frames must be classified by application of that rule.

The theory of certain recent cases is exemplified in Headquarters Ruling Letter (HRL) 953393, dated April 16, 1993. There, a photograph frame measuring 7.5 inches x 10 inches was classified. It consisted of a sheet of cardboard with a marbleized, piece-dyed silk fabric forming a 1.75 inch border around the front of the frame. A layer of foam padding was inserted between the cardboard and the silk fabric of the border. The opening through which the photo would show was covered with a thin sheet of clear plastic. The back of the frame was covered with a polyester fabric. A hinged piece of cardboard was attached to the back for use as a stand.

In classifying the frame, we found that, on the facts there considered, the paperboard frame and the marbleized silk fabric contributed equally to the whole of the finished article. That is, the paperboard frame's contribution of structure was not significantly more or less than the silk fabric's contribution of aesthetic appeal and marketability. Therefore, neither the paperboard component of the frame nor the silk fabric component of the frame imparted essential character. Consequently, classification was achieved by resort to GRI 3(c).

The CF 6445 indicates that the Customs classification decision here protested was based on HRL 953393, in addition to other rulings that classified similar merchandise under GRI 3(c) (HRL's 086197, April 10, 1990; 086259, April 18, 1990; 086638, June 12, 1990; and 086639, June 12, 1990). This means that Customs determined that a GRI 3(b) essential character conclusion could not be made on the facts presented and that, as in HRL 953393, a GRI 3(c) determination was appropriate. On the record of this protest, we are unable to conclude that this decision was incorrect. PROTESTANT makes no argument as to why, in this case, the classification decision should have been made under GRI 3(b) and why the paperboard component of the picture frame should be considered, under that rule, to impart essential character. The citation of NYRL 841199 is not enough, for it fails to establish that the decision here protested was incorrect.

The decision in HRL 953393 and other cases cited above is not controlling for classification of all picture frames in all instances. As stated, determinations under GRI 3(b) must be made on a case by case basis. As a general proposition, recent precedent shows only that where the component materials of a multi-component picture frame are considered to contribute equally to the whole of the frame, such that no one material can be regarded as imparting its essential character, classification should be achieved by application of GRI 3(c). That is the rule Customs applied in this case in making the decision protested, and PROTESTANT has failed to establish that the decision Customs made was incorrect.

HOLDING:

This protest is DENIED. The paperboard picture frame at issue, covered with textile fabric, is classifiable in subheading 6307.90.9986, HTSUSA.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the PROTESTANT no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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